Assam

Dibrugarh

CC/3/2020

M/S PANNALAL RAMESWAR & CO - Complainant(s)

Versus

THE MANAGER, FUTURE GENERAL INDIA INSURANCE CO. LTD - Opp.Party(s)

B.P. AGARWALA

20 Feb 2024

ORDER

Date of Argument-  15.11.2022

                                                                                Date of Judgement- 20.02.2024

The complainant has instituted this Complaint U/S 35 of Consumer Protection Act, 2019 against O.P.s on the averments that M/S Pannalal Rameswar & Co. is a partnership firm registered under the provisions of Indian partnership Act, 1932 comprised of the partners (a) Sri Dewkinanadan Agarwalla (b) Sri Devak Agarwalla and (c) Sri Himalaya Agarwalla and this complaint has been filed by Sri Dewkinanadan Agarwalla, being one of the partners who has been authorized to file the instant case against the O.P.s as well as to represent the complainant firm in the case on the basis of resolution passed by the complainant firm on 06.05.2020.  

Brief facts of the present complaint are that the complainant had purchased a private vehicle bearing registered No.AS-06-P/0039, Model: Nisan Terrano, MAKE: Nissan Motor India Pvt. Ltd., year of MFG.03/2014, having chassis No. MDHHSNA36E3008734 and ENG No. D043031 from the O.P. No.5 i.e. M/S Fareast Nissan, Tinsukia, Assam, the authorized dealer for sale and service of vehicle of Nissan Motor India Pvt. Ltd and being a tie up holder has a tie up arrangement with insurer O.P. No.1 to 3 (i.e. the Future Generali Insurance Co. Ltd.) for insurance of the vehicles sold by the said dealer and also for settlement and payment of claims/loss of the accidental vehicle on cashless basis by paying Rs.20,000/- and Rs.13,07,586/- vide payment receipt dated 20.06.2014 and 26.06.2014 respectively. The aforesaid vehicle of the complainant was insured by the insurer O.P. No.1 to 3 through the O.P. No.5 under the private car insurance policy of the insurer O.P.s. Subsequently the complainant renewed the previous insurance Policy No.NF149439 with the insurer O.P./O.P.s being the new insurance Policy No.MAR03906 effective and valid from 22.06.2018 till 21.06.2019 under aforesaid tie up arrangement. However, the complainant alleged that the O.P./O.P.s did not provide him details of terms and conditions of the insurance contract and he had always received only a single page document containing with as usual details viz premium detail, name of the insured, address of the insured, details of the vehicle insured etc. in a computerized form. As such the complainant raised his grievances vide letter dated 04.07.2018 and 06.11.2018 and demanded to furnish the insurance policy documents containing terms and conditions etc. but the O.P./O.P.s  did not provide him the same.

It is averred that during the subsistence of the insurance Policy No.MAR03906 being effective and valid from 22.06.2018 till 21.06.2019 the aforesaid vehicle No.AS-06-P/0039 met with an accident on 12.04.2019 at about 11.20 P.M. near Thowera Gate, Naharani, under the jurisdiction of Moran Police Station while the said car had been driven by the driver, Sri Rahul Changmai S/O Late Sotia Changmai bearing his D/L No. 41330/TV/MON/07, issued under the authority of DTO, Mon, Nagaland with authority to drive M/C and LMV, issued on 13.11.2007 and valid upto 14.11.2020. The complainant informed immediately over phone i.e. verbally to the Moran Police Station about the aforesaid accident. The vehicle was towed to the Police Station, Moran, Dibrugarh on the next day i.e. 13.04.2019 by the complainant by incurring an expenditure of Rs. 5,000/- as per Bill No. SKS/02/1920 dtd 13.04.2019 of M/S S.K. Agarwal & Sons C/O Bharat Ispat, Mancotta Road, Dibrugarh and the police authority registered a case under GDE No.280 dated 13.04.2019 of Moran P.S. After receipt of MVI Report dated 20.04.2019 from District Transport Authority of Dibrugarh of the accidental vehicle released the aforesaid vehicle from police custody to the complainant and issued their police report dated 03.05.2019 and 06.05.2019. Thereafter the complainant again towed the accidental vehicle at his own cost and expenditure to the place of O.P. No.5 i.e. the authorized dealer to repair as well as settlement and payment of claim/loss on cashless basis by Insurer O.P.s under the aforesaid tie up arrangement. The O.P. No.5, after receiving of the accidental vehicle for repair took all necessary steps required to be taken along with the accidental information etc. shared with the Insurer O.P.s and in turn the complainant received the claim form from the Insurer O.P.s through the said authorized dealer.

Thereafter the complainant lodged his claim, being claim No. CM014250 against his aforesaid accidental vehicle No. AS-06-P/0039 by submitting the necessary claim Form duly filled in and signed by him together with 8 Nos documents i.e. Smart Card of R.C., D/L of the driver, bill of towing, Insurance Policy copy, MVI Report, Pan Card, Police Report vide his letter dated 08.05.2019 through O.P. No.5 to the said Insurer O.P.s. The O.P. No.5, after receipt of the aforesaid accidental vehicle prepared prima facie report in form a sketch or graph of the vehicle dated 09.05.2019 showing 90% of the damage of the body and its relevant parts and accessories and accordingly prepared the prima facie estimate of repairing of Rs.4,76,351/-( Four lakh seventy six thousand three hundred and fifty one only) dated 13.05.2019 excluding engine and other parts of accidental vehicle. The O.P. No.5 i.e the said authorized dealer was needing to dismantle the said accidental vehicle to ascertain and prepare his further estimate in respect of the engine, gearbox, wheel parts, steering box and relevant parts thereof, which however as per him could have gone up to Rs.3,00,000/- besides the prima facie estimated loss of Rs.4,76,351/- in the facts and circumstances of the accident and prima facie damage.

It is further averred that in the meantime the Insurer O.P.s appointed an independent surveyor and loss assessor i.e. O.P. No.4, Sri Abhijit Baruah for survey and assessment of loss of the said accidental vehicle lying at the premises of said authorized dealer i.e the O.P. No.5. After survey of accidental vehicle and collection of claim form along with other documents by the surveyor, the complainant had received letters dated 01.07.2019 and 18.07.2019 from the Insurer O.P.s as well as email dated 05.07.2019 from the surveyor for submission of driving license in form of Smart Card of the driver, Sri Rahul Changmai instead of the Driving License submitted in as usual old format issued by DTO, Mon, Nagaland.

The complainant contended that he was helpless to submit the driving license of the driver in form of Smart Card since the driving license of the driver, Sri Rahul Changmai was not converted into smart card by the driver though it was valid not only at the material time of accident but also till 14.11.2020 as per information collected by the Insurance Company vide DTO/MON/MV-03/18/00 dated 09.07.2019 in respect of D/L No. 413300/TV/MON/07 of the said driver. The complainant alleged that the Insurer O.P.s even knowing the above facts of the validity of the driving license, mailed a letter dated 26.07.2019 whereby the claim of the complainant was repudiated and/or rejected on the plea that “the driving License No. 41330/TV/MON/07 of Sri Rahul Changmai who was driving the insured vehicle at the material time of accident and during the verification of said driving license from Nagaland DTO, confirmed in written to the investigator that the said Driving License stands cancelled as per Transport Commissioner’s memo No. TC-23/MV/2007/PT-I on dated 01.08.2014.”

It is averred that vide letter dated 02.08 2019 the complainant had depicted the facts to the O.P.s that he personally at the time of appointment checked the Driving License of the driver, Sri Rahul Changmai was bonafide and found valid till 14.11.2020 and the driver being a common man it was not possible on his part to know the current status of the Driving License. The Complainant thereafter requested the Insurer O.P.s on so many occasions during his verbal discussions over phone as well as vide letter dated 18.08.2019 to settle his claim and pay the loss of the accidental vehicle, considering the very facts of the validity of the Driving License of the driver and his NO FAULT in the matter of non-conversion of the same into Smart card by the driver of the vehicle.

Thereafter the complainant received an email dated 29.11.2019 from the O.P. No.5 where he was asked to remove his accidental vehicle as soon as possible by 30.11.2019, otherwise he has to pay parking charge @ 250/- per day against the said accidental vehicle. The complainant immediately replies the aforesaid email vide email dated 30.11.2019 and informed that he still has a positive hope for settlement of his claim but the complainant did not receive any positive response from the insurer O.P.s.

The complainant averred that besides above he was also like to add incidentally that

(a) the Insurer O.P./O.P.s never supplied any flap/ jacket containing the terms and conditions of the policy, hence did not abide by the very principle  of the Insurance contact based on the principle of utmost good faith.

(b) The Insurer O.P.s never disputed the accident and loss caused to the complainant in any manner and way rather rejected the claim and settlement of the loss only on the aforesaid plea of Driving license.

(c) The rejection of the claim and settlement by the O.P./O.P.s on the plea of the Insurer O.P.s on the plea of the Insurer O.P.s, is not only irrational, unreasonable, inconsistent and prejudiced ones but also full of ulterior motives to make a wrongful gain out of the loss caused to the him.

(d) The O.P./ O.P.s has/have from the very beginning developed a wrongful and prejudiced intention/ view about the loss and as such has/have been reluctant to consider any facts and circumstances being related to the driving license of the driver.

The complainant contended that the O.P. rejected his claim prejudicially, unreasonably and unjustifiably with an ulterior motive to make a wrong gain out of the loss and also inter alia for causing an inordinate and unreasonable delay therein which amounts nothing but a serious grave deficiency of service on the part of the O.P.s due to which he has been suffering mental and physical agony without having any fault on part of him. Hence the complainant was compelled to file this complaint against the O.P. and prays before this Commission for grant of following relief/reliefs-

 

(a) for passing necessary direction to the insurer O.P.s to settle and pay the claim of the complainant in respect of his accidental vehicle on cashless basis as per the loss/ damage caused to the said vehicle.

(b) for payment of the loss caused to the accidental vehicle directly to authorized dealer O.P. No. 5 keeping in view the prima facie damage of Rs.4,76,351/- as well damage of the engine, gear box steering box etc. if any found on dismantling of the same.

(c) for payment of parking charge @ 250/- per day from 30.11.2019 as demanded by the O.P. No. 5 due to idle parking of the vehicle at their premises.

(d) for payment of interest @ 18% from the date of the claim for inordinate & unjustified delay of the O.P.s.

(e) for the incidental expenses to the business to the tune of Rs.2,00,000.00 incurred by the complainant in hiring the taxies/ vehicle from time to time in wake of delay, non settlement and thereby ultimately rejection of the claim by the Insurer O.P./O.P.s

(f) for payment of compensation of Rs.1,00,000.00 on account of serious deficiency of services and mental agony, torture & mal-motivated harassment caused by the O.P./O.P.s to the complainant.

(g) for payment of all the cost of proceedings & litigation etc.

After registering the complaint, notices were issued to the O.P.s. and accordingly the O.P. No.1 to 3 appeared before this Commission and filed Petition No.47/21 praying for determining the maintainability of this present complaint contending interalia that the complainant is not a consumer within the meaning and definition of consumer as defined in the Consumer Protection Act. Further they claimed that the complainant is a partnership firm and partnership firm cannot be regarded as consumer under Consumer Protection Act, as the firm is engaged in business for commercial activities. The O.P. No.1 to 3 have also cited rulings in support of their petition. In reply the complainant has filed written objection admitting the fact that the complainant is a partnership firm and the accidental vehicle had also been registered in the name of the complainant’s firm. However he submitted that the insurer O.P.s has been produced in twisted form by quoting only Sec. 2(1)(d) without quoting Sec.2(1)(m) and Sec.2(1)(o) of the Consumer Protection Act, 1986 and hence, the insurer O.P.s have tried their level best to mislead this Commission. In support his submission the Complainant referred decision of National Consumer Dispute Redressal Commission passed in M/S Harsolia Motors Vs National Insurance Company Ltd. decided on 03.12.2004. On perusal of the aforementioned provisions of the Consumer Protection Act and the ruling citated by the complainant it is observed by this Commission that a partnership firm is a ‘person’ and hence can be treated as a ‘consumer’ under Consumer Protection Act. Further also observed that the insurance policy purchased by the complainant not basically to earn profit but to cover the uninvited risk, hence buying of insurance policy is not for commercial purchased even if it is purchased by commercial enterprises. Therefore considering the statutory position as well as relying on the decision of National Dispute Redressal Commission this Commission comes to conclusion that the complainant is a consumer under the O.P. insurer and the complaint petition filed by the complainant is found maintainable in the eye of law and hence dismissed the Petition No.47/21 vide order dated 16.03.2022 filed by the O.P. No.1 to 3.  Further the O.P. No.4, the surveyor also appeared and filed a petition No.46/21 under Order 1 Rule 10(2) of Civil Procedure Code, praying for strike out his name from this present complaint as the Complainant has seek no relief against him. This Commission was inclined to expunge the name of the O.P. No. 4, surveyor, Sri Abhijit Boruah from the complaint petition as no primafacie case has been made out against him but unfortunately after filing of the aforesaid petition, the O.P.s were remaining absent without any step. Thus this Commission find no reason to entertain the aforesaid petition filed by the O.P. No.4 and hence the same was rejected. Further O.P. No.5, the authorized dealer did not turn up before this Commission inspite of notice was duly served on 08.02.2022 as per track consignment report submitted by the complainant. It is to be mentioned here that after filing of both the Petitions No.46/21 and 47/21 on 31.03.21 the O.P.s were not appearing before this commission for almost one year. Being constrained by the aforesaid facts this Commission without awaiting any further decided to proceed the case exparte against all the O.P.s vide order dated 16.03.22. As such Written Statement filed by O.P. No.1 to 3 on an off date i.e. 23.11. 2022 could not be taken into consideration in deciding this complaint as the case has already been proceeded ex-parte vide order dated 16.03.22 of this Commission.

The complainant submitted Evidence on Affidavit of Sri Dewkinandan Agarwalla on 19.09.2022 stating that M/S Pannalal Rameswar & Co. is a registered partnership firm and Sri Dewkinanadan Agarwalla, being one of the partners has been duly authorized to represent the complainant firm vide resolution dated 06.05.2020. (Ext. No.1 and 2).

In the evidence on affidavit the complainant stated that he had purchased private vehicle bearing Registration No.AS-06-P/0039 (Ext. No.5), having chassis No.MDHHSNA36E3008734 and ENG No.D043031, year of MFG.03/2014 and MAKE Nissan Motor India Pvt. Ltd. Model: Nisan Terran from the O.P. No.5, the authorized dealer for sale and service of vehicle of make Nissan Motor India Pvt. Ltd and being a tie up holder has a tie up arrangement with insurer O.P.s for insurance of the vehicles sold by the said dealer and also for settlement and payment of claims/loss of the accidental vehicle on cashless basis by paying Rs.20,000/- and Rs.13,07,586/- vide payment receipt dated 20.06.2014 and 26.06.2014 respectively (Ext. No.3 and 4). The said vehicle of the complainant was insured by the insurer O.P.s through the O.P. No.5 under the private card insurance package policy of the insurer O.P.s. Subsequently the complainant renewed the previous insurance Policy No.NF149439 vide his renewal insurance Policy No.MAR03906 (Ext. No.6) being effective and valid from 22.06.2018 till 21.06.2019 under aforesaid tie up arrangement. It is also stated that the O.P./O.P.s did not supply details terms and conditions of the relevant insurance policy as such vide letter dated 04.07.2018 and 06.11.2018 (Ext. No.7 and 8) the complainant raised his grievances and demanded to provide the same.

It is further stated that on 12.04.2019 his vehicle met with accident at about 11.20 P.M. near Thowera Gate, Nahorani, being under the jurisdiction of Moran P.S. District- Dibrugarh, Assam while it was being driven by the driver, Sri Rahul Changmai S/O Late Sotia Changmai bearing his D/L 41330/TV/MON/07, issued under the authority of DTO, MON, Nagaland with authority to drive M/C and LMV issue on 13.11.2007 and valid upto 14.11.2020 (Ext No.9). The complainant informed immediately over phone to the concerned Moran Police Station about the aforesaid accident. On 13.04.2019 the vehicle was towed to the Moran police station by the Complainant by incurring an expenditure of Rs.5,000/- by the complainant as per bill No.SLS/02/1920 dated 13.04.2019 of M/S S.K. Agarwal & Sons C/O Bharat Ispat, Mancotta Road, Dibrugarh (Ext. No.10) and the police authority registered a case as Moran P.S. GDE No.280 dated 13.04.2019(Ext. No.12). After receipt of MVI Report dated 20.04.2019(Ext. No.11) from District Transport Authority of Dibrugarh of the said accidental vehicle released the aforesaid accidental vehicle from police custody to the complainant and issued their police report dated 03.05.2019 and 06.05.2019 accordingly (Ext No.13 and 14).

The complainant thereafter again towed the accidental vehicle at his own cost and expenditure to the place of the O.P. No.5, for repairing as well as for settlement and payment of claim/loss on cashless basis by insurer O.P.s under the aforesaid Tie up arrangement. Thereafter the complainant lodged his claim being Claim No.CM014250 by submitting necessary claim form together with 8 Nos of documents vide letter dated 08.05.2019 (Ext No.15 and 16) to the Insurer O.P.s through the O.P. No.5. After receipt of the aforesaid accidental vehicle the O.P. No.5 prepared prima facie report in form a sketch or graph of the vehicle dated 09.05.2019 (Ext No.17) showing 90% of the damage of the body and its relevant parts and accessories and accordingly prepared the prima facie estimate of repairing of Rs.4,76,351/- dated 13.05.2019 (Ext No.18) excluding engine and other parts of accidental vehicle. It is further stated that to ascertain and prepare further estimate in respect of the engine, gearbox, wheel parts, steering box and relevant parts thereof, the O.P. No.5, was needing to dismantle the said accidental vehicle which however as per him could have gone up to Rs.3,00,000/- besides the prima facie estimated loss of Rs.4,76,351/- in the facts and circumstances of the accident and prima facie damage.

In the meantime the Insurer O.P.s appointed an independent surveyor and loss assessor Sri Abhijit Baruah (O.P. No.4) for survey and assessment of the loss of the said accidental vehicle lying at the premises of said authorized Dealer i.e the O.P. No.5. After survey of accidental vehicle and collection of claim form by the O.P. No.4, the complainant received letters dated 01.07.2019 and 18.07.2019 from the Insurer O.P.s as well as email dated 05.07.2019 from O.P. No.4 for submission of driving license in form of Smart Card of the driver, Sri Rahul Changmai instead of the driving license submitted in as usual old format issued by DTO, Mon, Nagaland (Ext. No.19,20, and 21). The complainant stated that driving license of the driver, Sri Rahul Changmai was not converted into smart card by the said driver as such he was not in a position to submit the driving license in form of Smart Card but it was valid upto 14.11.2020 as per information collected by the Insurance Company vide DTO/MON/MV-03/18/00 dated 09.07.2019 in respect of D/L No.413300/TV/MON/07 of the said driver (Ext No. 22).

It is stated that even knowing the above facts of the validity of the driving license, the insurer O.P.s repudiated the claim of the complainant vide letter dated 26.07.2019 (Ext No.23). The complainant had depicted the facts vide letter dated 02.08.2019 (Ext No. 24) that he personally at the time of appointment checked the Driving License of the driver, Sri Rahul Changmai and bonafidely found valid till 14.11.2020 and he being a common man it was not possible on his part to know the current status of the Driving License. Thereafter the complainant requested the Insurer O.P. verbally on so many occasions over phone as well as vide letter dated 18.08.2019 (Ext. No. 25) to settle his claim but no avail. After that the complainant received an email dated 29.11.2019 (Ext No. 26) from the O.P. No.5 wherein he was asked to remove his accidental vehicle as soon as possible by 30.11.2019, else to pay the charge @ 250/- per day against the said accidental vehicle. The Complainant immediately reply the aforesaid email vide his email dated 30.11.2019 (Ext No. 27).

The learned Counsel for the complainant submitted Written Argument on 15.11.2022. The Learned counsel for the complainant referred various decisions of Hon’ble National Commission and State Dispute Redressal Commissions regarding the principle of “Uberima fides” as well as liability of Insurance company to pay compensation on account of delay in settling claim. Further in respect of driving license of the driver the learned counsel for the complainant contending the following points that has been referred various decisions and rulings expressed from time to time by the Hon’ble Apex Court of India which are as follows-

1. That in fact the concerned driving license was originally issued by DTO, Mon, Nagaland in the name of Sri Rahul Changmai S/O Late Sotia Chnagmai bearing his D/L 41330/TV/MON/07, with authority to drive M/C and LMV; date of issue being 13.11.2007 and valid up to 14.11.2020.
2. That the owner of the vehicle/person hiring/ engaging the driver is a common person who cannot be expected to see and verify from the face of the D/L nothing other than its validity to drive the vehicle.
3. That the owner would while engaging the driver only take the test of the driver and if he finds that the driver is competent to drive the vehicle, he will either hire or engage the driver.
4.  That it is not only strange one but also surprising one that the Insurance company expects the owner to make enquiries with RTO’s which are spread all over the country- whether the driving license issued so by the authority concerned is valid, genuine etc. or not
5. That where the owner has satisfied himself that driver has a driving license and is competent to drive the vehicle, he should not be implicated for violation of section 149(2)(a)(ii).
6. That in this case neither the owner was ever aware of such fact as found after investigation by the insurer O.P.s that the license was cancelled due to the reasons for non conversion of the same into a SMART CARD Moreover the driving person is a pretty old one license and had been driving the vehicle for a long time, as such also competent to drive not only this there was also nothing to doubt on the face of the Driving License as to its genuineness.
7. That it will not be further out of reference to state that had the driving license in question been appearing to be cancelled or in genuine in any respect on the face itself, the insurance company could also detect the same before investigation report, but it did not happen so rather it was the investigation report only from which it was learnt that the driving license being not converted to a SMART CARD was cancelled.

In relation to his above contention the learned counsel for the Complainant referred below mentioned decision of Hon’ble Apex court and other courts of India which are as follows-

1. National Insurance Co. Ltd. -vs- Swaran Singh and ors 2004 (1) SBR, 582

(ii) Valid renewal of license though original was fake- the insurance company would not avoid liability for damage to vehicle driven by such driver- National Insurance Co. Ltd. -vs- Rattan Singh 2007(1) CPR, 395

(iii) Motor Vehicle Act 1988- Section 149- Liability of Insurance Co.- When license found to be fake- Can not be avoided- If the owner of the vehicle well- Apex Court Judgement in case of United India Insurance Co. Ltd. -vs- Lehru and others 2003 AIR SCW 1695-2003 (5) AIC 589 (SC)-2003(51) AIR 405 relied upon 2007(55) AIC 440- Uttarakhand High Court.

                                                Decisions and Reasons thereof

We have carefully gone through the averments of the complainant and the evidence produced and the documents marked as Exhibit No.1 to 27 in support of those averments as well as written argument. It is also worthy to mentioned here that though the O.P.s remained ex-parte vide order dated 16.03.2022, this Commission wants to dispose this complaint fully on merits with available materials on record. It is to be mentioned here that this Commission has already held that the complainant is a consumer under the insurer O.P.s vide order dated 16.03.2022 therefore this issue is no more needed for discussion and decision.

Regarding deficiency in service as alleged by the complainant, it transpires from the pleadings and documents placed in this case that the complainant is a registered owner of the vehicle bearing No.AS-06-P/0039 which was insured by the insurer O.P.s through O.P. No.5 i.e. the Fareast Nissan, Tinsukia, Assam vide his renewal insurance Policy No.MAR03906 being effective on and from 22.06.2018 to 21.06.2019 under the private car insurance package policy of the insurer O.P. No.1 to 3. The said vehicle met with an accident on 12.04.2019 and about accident police was informed. The complainant gave intimation to the insurer O.P.s through O.P. No.5 about accident and loss to the vehicle immediately after accident and thereafter claim was submitted along with documents by the complainant to the insurer O.P.s through the O.P. No.5 under the aforesaid tie up arrangement. Subsequently the insurer O.P.s appointed an independent Surveyor, Mr. Abhijit Baruah for inspection and survey of the claim of accidental vehicle. After completion of survey of the accidental vehicle the surveyor asked the complainant to submit the driving license of the driver Sri Rahul Changmai in form of smart card. The complainant was not in a position to submit the driving license of the driver in form of smart card as it was not converted in form of smart card by the said driver. Thereafter the insurance company got verified the driving license of driver Sri Rahul Changmai from concerned DTO, Mon, Nagaland in respect D/L No.413300/TV/MON/07 and as per letter DTO/MON/MV-03/18/00 dated 09.07.2019 clarified that the driving license stands cancelled as per Transport Commissioner’s Memo No.TC-23/MV/2007/PT-I dated 01.08.2014. After receiving of the aforesaid Memo dated 09.07.2019 the insurer O.P. No.1 to 3 repudiated the claim of the complainant vide letter dated 26.07.2019 on the ground that the driver of the said vehicle was not holding a valid driving license at the material time of accident.

However, on meticulous perusal of the aforesaid Memo No. DTO/MON/MV-03/18/00 dated 09.07.2019 (Ext No.22) it is observed that in point No.9 which read as “This license was originally issued from this office but it was not converted to smart card (sarathi), which is mandatory for the same, as per Transport Commissioner’s Memo No.TC-23/MV/2007/PT-I dated 01.08.2014. hence the Driving License stands cancelled.”  Further in Point No.2 and 8 of the said letter it appears that the aforesaid license issued on 13.11.2007 and valid upto 14.11.2020. Therefore bare perusal of point No.2, 8 and 9 of Exhibit No. 22 it can be perceived that the driving license of the driver Sri Rahul Changmai was originally issued by the concerned DTO, Mon, Nagaland and it appears to be a valid document as per office record. Further in the aforesaid Exhibit it is nowhere stated that form which dated and effect of time, the license was considered to be cancelled by DTO, Mon, Nagaland. Furthermore there is nothing on record to show that the driver was informed by the licensing authority to convert the license into smart card.

It is also observed by this Commission that the complainant has specifically pleaded in the complaint that before employing Sri Rahul Changmai as driver, the complainant had seen his driving license and the driving license was found to be genuine and valid upto 14.11.2020. The said plea of the complainant is also corroborated from Exihit No.24 filed by him. However, there is no evidence on record to establish that the complainant had knowledge that the license of the driver was not valid and even then, allowed him to drive the vehicle. In this regard, this Commission relied upon the decision of the Hon’ble Supreme Court of India in case of Nirmala Kothari vs United India Insurance Company Limited, Civil Appeal No. 1999-2000 of 2020, decided on 04.03.2020, which is read as follows-

            “Paragraph-11 - while hiring a driver the employer is expected to verify if the driver has a driving license. If the driver produces a license which in the face of it looks genuine, the employer is not expected to further investigate into the authority of the license unless there is cause to believe otherwise. If the employers find the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving license there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving license. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the license was fake or invalid and still permitted the person to drive, the insurance Company would no longer continue to be liable.”

Therefore this Commission relying on the above decision of Apex Court and also keeping in view of the above facts and circumstances of the present case is of the considered opinion that the Insurer O.P. No.1 to 3 has caused deficiency in service by repudiating the insurance claim of the complainant on this sole ground. As regard the O.P. No.4, Sri Abhijit Baruah, the independent surveyor, this Commission observed that he was appointed by the insurer O.P.s just only to survey of the damaged vehicle of the complainant lying in the premises of the O.P. No.5 hence it cannot be treated as a deficiency of service against the complainant. And as per provisions of the Consumer Protection Act, the Commission is only required to adjudicate about the adequacy of the service hired by the complainant and no complaint could therefore be filed against unnecessary party. Further the O.P. No.5 is an authorized dealer for sale and service of vehicle of make Nissan Motor India Pvt. Ltd and there is a tie up arrangement between the insurer O.P.s for insurance of the vehicles sold by the said dealer and also for settlement and payment of claims/loss of the accidental vehicle on cashless basis. It is observed that after receiving the accidental vehicle for repairing the O.P. No.5 took all necessary steps required to be taken and fully cooperate with the complainant for making arrangement of settlement of the insurance claim from the insurer O.P.s. Hence the O.P. No.5 i.e. the authorized dealer of the vehicle cannot be held responsible and deficient in service for repudiation of the claim by the insurer O.P.s as the insurance company was under obligation to indemnify the claim of the complainant.

Considering the above discussions and observations recorded by this commission it is held that the complainant is entitled to the relief, claimed by him. Since the O.P.s have not placed on file any report of surveyor, therefore, this Commission has no option but to rely upon the estimate of repairing prepared by the authorized dealer i.e. the O.P. No.5 dated 13.05.2019 and towing bill of the accidental vehicle filed by the complainant as document No.18 and 10. The details of bill has been corroborated by the complainant by way of his affidavit as Exhibits.  Hence the O.P. No.1 to 3, the Future Generali India Insurance Co. Ltd are directed –

1. to pay the loss caused to the accidental vehicle to the complainant of Rs.4,76,351/- (Rupees four lacs seventy six thousand three hundred and fifty one Only) with 7% per annum interest from the date of filling of the case till disposal of the complaint along with the towing bill of Rs.5000/- dated 13.04.2019.
2. to pay Rs.30,000/- as compensation for causing mental agony, physical harassment and financial loss caused to the complainant.
3. to pay Rs.10,000/- as cost of litigation.
4. O.P. No.5 is directed to restrain from taking any parking charge from the complainant due to idle parking of the vehicle.

  All the awarded amounts be deposited into the credit of this Commission by Opposite Party No.1 to 3 within 30(thirty) days from the date of receipt of this judgment and failure in compliance with this judgement an interest @ 9% p.a. will be charged from the date of judgement till the date of payment.

 Send copy of this judgement and order to the Opposite Parties for compliance. Complainant is to take step.

The instant C.C. No. 03/2020 is accordingly disposed of ex-parte.

Next date fixed 30.03.2024 for compliance.